AJIL Symposium: Sadat response to Robinson and van Sliedregt
[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Director, Whitney R. Harris World Law Institute, at Washington University School of Law]
I found the comments of my colleagues very thoughtful and helpful to my own continuing engagement with the law in this area. As Elies points out, sovereignty concerns are indeed central to the original conceptualization of crimes against humanity at Nuremberg, and remain a preoccupation of the Rome Statute that the ICC’s judges are charged with interpretation. As she notes, this thread of the Kaul dissent is unobjectionable. She then turns to the question of “human-ness” – the focus of the Rome Statute and indeed, all of modern international criminal law, on the protection of “humanity” as a second value embedded in Article 7 of the Rome Statute. I agree with this, and with Darryl’s understanding of much of the chapeau element’s purpose being essentially jurisdictional in nature – a way of sorting out permissible and impermissible exercises of international jurisdiction that will keep cases that belong in national courts in those courts and cases that need to be adjudicated internationally at the ICC (or elsewhere). Indeed, one of the most interesting developments in international criminal law has been the elaboration of a fairly clear framework for the elaboration of a set of jurisdictional principles – complementarity, gravity, the widespread or systematic nature of the harm, the victim or the harm caused some specific damage to an international interest (i.e., attacks on UN peacekeepers), the shocking nature of the harm, etc. – to sift cases properly before international criminal courts from those properly tried elsewhere. These jurisdictional bases overlap, but they are, by and large, alternative, not cumulative or, in the Rome Statute system, are directed to admissibility rather than “jurisdiction” strictly speaking. Certainly, by electing the formulation “state or organizational policy,” it seems that the drafters of the Rome Statute were suggesting that non-state actors, if they committed attacks upon civilians that were sufficiently widespread and systematic, could perpetrate the kinds of atrocity crimes the Rome Statute was adopted to address; which is why I believe the majority in the Kenya case had the better view.
Likewise, although I cannot comment on the Gbagbo decision as it is being appealed by the Prosecutor (assuming leave is given), I am grateful to Darryl for pointing out how the Majority exhibits the same trend I highlight in my article which is to disaggregate the statutory requirements and create new elements required to establish crimes against humanity not required by the Rome Statute. As I note in Crimes Against Humanity in the Modern Age, one of the strangest of these is the requirement, first surfacing as a negative in obiter dictum, then apparently copied into other opinions as a new element, that the Prosecutor must identify what group – national, ethnic, religious, etc. — the civilians belong to in order to demonstrate the existence of an attack. The introduction of this language into the Court’s case law is unfortunate. It may be useful to describe the group to demonstrate a policy to attack all those of a certain ethnicity, but unless persecution or genocide is charged, the appurtenance (or not) of victims to a particular group is simply irrelevant to finding that attack upon civilians has been carried out.
Darryl’s comments made me wonder whether I completely support the reintroduction into the ICC Statute of the “state or organizational policy” requirement. I find plenty of support for the idea that it is not required by customary international law, although my dear friends and colleagues Bill Schabas and Claus Kress have argued otherwise. I have endeavored to square the circle by arguing, like Darryl, that it should be a modest threshold at the ICC for this reason, in order to maintain a coherence between pre-Rome and post-Rome crimes against humanity jurisprudence, and to avoid rendering crimes against humanity at the ICC as difficult to establish as genocide at the ICTY, which was a real risk of adopting the dissent in the Kenya case. I also wonder if, from a criminal law perspective, whether the notion of having to prove essentially organizational liability by establishing the nature of the group committing the crime to which the individual’s acts are linked, is an unfortunate throw-back to Nuremberg’s focus on organizational liability. To put it another way, it was added to the Statute as a last minute compromise and muddies the waters considerably, unless the Rome Statute is seen as a codification or extension of customary international law as opposed to a sharp break from it. Elies’ note about the recent study of the ICTY jurisprudence is interesting in this regards, suggesting a convergence between the ICTY and the ICC that may lead to consolidation of ICL before both institutions.
Finally, I very much appreciated Elies referring to Charles Jalloh’s point about ethnocentricity. He noted it when I first work-shopped the paper a couple of years earlier, and made me rethink my own position about crimes against humanity, and focus upon World War II and particularly the Nuremberg precedent. While the horror of the holocaust will never leave us, it is undoubtedly important to understand the terrible suffering of today’s victims of atrocity crimes and not to minimize their sufferings or their claims to justice. Today’s ICC owes much to the Nuremberg (and Tokyo) precedents; but its establishment, mission and mandate are really quite different.